Tag Archives: Code of Ethics

Much has changed in the regulatory landscape in the two years since Scottish drones expert Dr David Goldberg and the ABC’s Mark Corcoran addressed a Griffith University seminar on the law and ethics of the media use of drones and graduate student Sam Worboys and I wrote a paper on the topic.

He explained that the recent deregulation of drones by the Civil Aviation Safety Authority (CASA) meant the recreational use of small drones had minimal restrictions and that it was easier to utilise drones for commercial purposes.

“However, behind this potential sits a complex web of liability which has the ability to catch would-be drone pilots unaware and facing significant fines and potential imprisonment,” Popple said.

He identified a range of laws impacting upon drone use including negligence actions from damage to person or property, radiocommunications and aviation laws, privacy, surveillance devices legislation, trespass or nuisance actions, and work health and safety legislation.

For those who missed the engaging talk, Popple will be speaking again in Brisbane in June as part of a panel of speakers addressing drone regulation.

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

Calling all journalists, bloggers, media law geeks and students: journalists and whistleblowers internationally need your help by completing this global UNESCO-commissioned survey on source protection.

The project is titled the ‘UNESCO Internet Study: Privacy and Journalists’ Sources’ and is led by respected Australian journalism academic and WAN-IFRA/World Editors Forum Research Fellow Julie Posetti.

I am honoured to sit on the Review Panel for the study, along with researchers from the US, South Africa, Italy, Thailand, Uganda and India.

According to WAN-IFRA, the research has these objectives and questions:

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

Drones – unmanned aerial vehicles – raise a host of legal and ethical issues but responsible journalism should be exempted from many legal restrictions, according to international media law expert Dr David Goldberg.

Dr Goldberg was co-author (with the ABC’s Mark Corcoran and Oxford’s Robert G. Picard) of the Oxford Reuters Institute for the Study of Journalism report ‘Remotely Piloted Aircraft Systems and Journalism’ in June, 2013.

Dr David Goldberg and ABC drones co-ordinator and foreign correspondent Mark Corcoran at the G20 Drones Symposium at Griffith University

He was addressing the Drones, Privacy and Journalism symposium at the Griffith University campus at South Bank in Brisbane tonight (November 4).

He was joined by former ABC Foreign Correspondent reporter Mark Corcoran (now with ABC News Online and leading the ABC’s drones program) and The Australian’s legal affairs editor Chris Merritt who formed the panel responding to Dr Goldberg’s address.

“My claim is that drones both can and pointedly should be allowed to be used for the purposes of newsgathering, journalism and media production,” Dr Goldberg said.

“The reason that they should is that they are basically adjuncts for newsgathering techniques.

“In themselves, the drone is nothing. The drone is just a flying object. In itself it is nothing – it’s what you can click onto it, either a camera or data sensor that makes a drone useful in the context of journalism or newsgathering.”

Dr David Goldberg arguing for a responsible media exemption to privacy laws when using drones

Dr Goldberg displayed Air Services Australia regulations for the G20 event, showing the special permissions accredited media need to be able to use aircraft, particularly “civil unmanned aerial systems”.

“Whatever we call these things, the technically correct language of ‘remotely piloted aircraft’ (RPAs) establishes … that they are not unmanned, they are remotely piloted. The fact there is no pink fleshy object in the front doesn’t mean there is no human connection to the object.

“They’re called unmanned but it’s far from unmanned.

“The second is that they are aircraft … and therefore covered by air law and by the aviation regulators.”

He said there were many regulatory issues to be resolved before drones could be used for reporting in an urban environment.

“The use of these gizmos by the media is a protected activity – for the purposes of distribution of information to the public to which it has a right to know. I’m only talking about public interest journalism and make a conceptual distinction from ‘paparazzism’.”

He explained that drones were simply the next stage in the evolution of the camera.

“There is no reason why drones cannot be included as types of cameras. There is a constitutional with a small ‘c’ protection for their use. (I know you don’t have a constitutional right to freedom of the press in Australia.)”

He said he was unconcerned about the issue of privacy.

“We cannot let the privacy freaks, the privacy lobby, drive the discussion of drones,” he said.

He argued the taking of private images had been done for decades. The invention of the Kodak Brownie camera had liberated the image-taking from being a static to a mobile phenomenon and the drone was simply an evolution of that technology.

“It may be that some individuals are more sensitive about their images being taken,” he said.

ABC News remotely piloted aircraft research co-ordinator and symposium panellist Mark Corcoran explained he first imagined the use of drones by the media when he saw their use by the Israeli military in the Gaza in 2006.

Drones symposium panelists (left to right) Mark Corcoran, David Goldberg and Chris Merritt debate the law and ethics of media drone use

He later saw them used by the US military in Afghanistan as a reconnaissance tool to ensure safety before rescuing troops from a dangerous situation.

The advent of the smartphone had generated the boom in the past three or four years, with the ABC making substantial progress in the past year.

He said the technology was cheap and highly effective in certain circumstances.

Their special advantage was to identify exit routes in dangerous reporting situation.

“This sort of technology gives another perspective,” he said. “It’s an occupational health and safety tool and it can keep you alive.”

He said the basic investment in an RPA by the ABC was now a relatively inexpensive $1500 when equipped with a camera.

He said the recent use of a drone to take footage above protesters in Hong Kong would not fall within the ABC’s guidelines for their use and would not meet Australian aviation regulations.

‘We make a choice under our existing policies not to show certain images – even though they are there,” he said.

“We believe the existing laws are adequate. We believe it’s about editorial control and the ABC makes judgments about that every week.”

The ABC was working on its operating procedures. The broadcaster had brought in external operators with CASA approval to fly RPAs.

“We need highly specialist people who not only have operating certificates that are cinematographers as well,” he said.

“There really are only a few in the country and we’ve hired them to do certain jobs.”

Most of the stories where the ABC had used drones to date had been in more of a documentary style – such as on Four Corners, Australian Story and in special outside broadcasts.

“If you can’t get a helicopter it’s fantastic technology. The ABC has a long history in aviation. It is well aware of the risks of aviation. We lost three very good friends in a helicopter crash three years ago. We do get that it’s a complex area,” Corcoran said.

He explained that CASA had flagged they would change the regulations for the sub-2kg commercial operation of RPAs.

Hobbyists could fly a drone in the park without regulatory concern.

“However, if I am a journalist and I want to film an event with that same craft then I need an operating licence,” he said.

CASA had determined it was an acceptable risk to do away with the sub-2kg regulations after doing impact tests.

“This is a bit like being hit by a flying lawnmower. They can do some damage,” he said.

“We’ve put our own regulations around this, we’ve implemented our own trial training regime in anticipation of that change.

“We think this is terrific in a controlled, contained environment.”

He said rural and regional Australia was where the ABC could best realise the potential of the technology.

“At the end of the day this is an aviation activity – it’s not just a flying smartphone,” he said.

—-

Better options than a privacy tort for controlling media use of drones, says legal journalist Merritt

Panellist Chris Merritt – legal affairs editor of The Australian – said the ALRC had not properly examined the question of whether Australia really needed a privacy tort.

The Australian’s legal affairs editor Chris Merritt cautions against a rush to a tort of invasion of privacy

“Lawyers have a natural disposition to see the formal court process as a way of solving society’s ways,” he said.

But this would not work for the media or the ordinary citizen.

“I’m not saying there should be no remedy

“A better remedy for the potential of invading privacy by these gizmos is to build on what is already there.”

He pointed to media exemptions under the Privacy Act as a model for handling the privacy issues associated with responsible media use of drones.

“The issue’s not going to go away – there are breaches of privacy by the media,” he said.

“When Lord Leveson it became clear to me that this is something that the media can’t ignore. It’s a problem.

“So what’s the remedy? There are abuses of privacy by print media but there are nowhere near as many of them as there are in electronic media.”

He said “tabloid television programs” were the worst offenders, but the federal regulator of these programs does not use the mechanisms that are in place.

“Mainstream print media is not as pure as driven snow. We make mistakes. If we are going to make greater use of these things we need to take control and build on that exemption from the Privacy Act by ensuring mainstream media operators of these things are registered not just in how to operate them but in privacy law to ensure we do not create an opening for our enemies.”

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

We are honoured to be hosting acclaimed international media law expert Dr David Goldberg for two seminars examining the law and ethics of media use of drones early next month (November 3 and 4).

Dr Goldberg was co-author (with the ABC’s Mark Corcoran and Oxford’s Robert G. Picard) of the Oxford Reuters Institute for the Study of Journalism report ‘Remotely Piloted Aircraft Systems and Journalism’ in June, 2013.

Former ABC Foreign Correspondent reporter (now with ABC News Online) Mark Corcoran and The Australian’s legal affairs editor Chris Merritt form a panel responding to Dr Goldberg’s symposium address at South Bank in Brisbane on November 4.

Former Gold Coast Bulletin editor (now Griffith University communications and marketing director) Dean Gould and I will be panellists for the Friends of the Library event at Griffith’s Gold Coast campus on November 3.

Attendance at both events is free, but registration is required at the links detailed here for the Brisbane event (Nov 4) and here for the Gold Coast event (Nov 3). Both presentations start at 6pm, with guests asked to arrive from 5.15pm for the Brisbane event and from 5.30pm for the Gold Coast presentation.

Dr Goldberg is co-editor (with Gavin Sutter and Ian Walden) of Oxford University Press’s Media Law and Practice (London, 2009). He is also Adjunct Associate Professor of Law at Southwestern Law School, Los Angeles and Honorary Visiting Senior Fellow, Institute of Computer and Communications Law, Queen Mary College, University of London.

As Dr Goldberg explains, “Cheap, light and portable, RPAs can easily be moved to locations where reporting needs to take place or production is most desirable and, crucially, can keep journalists safe.

“However, this category of use by mainstream media and citizen journalists is being frustrated by regulatory and legal restrictions as well as so-called ‘ethical’ gaps and challenges.”

In the presentations, he urges that the public’s right to receive information from journalists exercising the rights involved in carrying out the profession of reporting—and the concomitant right to access communications technologies in order to do so — should permit the use of RPAs in this context in principle and trump counter-claims, not least those advanced by the pro-privacy lobby.

Full details of the events are as follows:

—–

From Glasgow to Gold Coast: The Challenges of Drone Journalism – Presented by Friends of the Library

(This event precedes the Drones Symposium at Southbank on Tuesday November 4)

The Friends of the Library presentation with Dr David Goldberg, media law, ethics, privacy and free information expert will discuss drone technology focusing on media usage in major events like the 2018 Gold Coast Commonwealth Games.

Drones, Privacy and Journalism – Public Symposium

The Griffith Centre for Cultural Research (GCCR) welcomes media, law, ethics and free information expert Dr David Goldberg to discuss drone technology, focusing on media usage in major news events. Special guest panelists include Mark Corcoran, a respected reporter and producer for the ABC’s ‘Foreign Correspondent’ and Chris Merritt, Legal Affairs editor for The Australian.

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

The Abbott government’s latest tranches of national security and counter-terrorism laws represent the greatest attack on the Fourth Estate function of journalism in the modern era. They are worse than the Gillard government’s failed attempts to regulate the press.

Unlike most other Western democracies, Australia has no constitutional instrument protecting free expression as a human right. Few politicians can resist the temptation to control the flow of information if the law permits.

Here are five reasons that this latest move is damaging the democratic cornerstone of press freedom:

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

The new law leaves journalists and bloggers liable to up to five years in jail for ‘unauthorised’ disclosure of information related to a special intelligence operation – and up to 10 years if the disclosure ‘endangers the health or safety’ of anyone or will ‘prejudice the effective conduct of a special intelligence operation’ (Section 35P of the ASIO Act).

The legislation seems aimed at whistleblowers like Edward Snowden or Wikileaks, but as Ben Grubb reported in smh.com.au, it casts its net so wide that it relies on the goodwill of the government of the day not to pursue ordinary journalists and commentators if they happen to stumble across such an operation and report upon it.

35P Unauthorised disclosure of information

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information relates to a special intelligence operation.

Penalty: Imprisonment for 5 years.

Speaking to The Australian’s legal affairs editor Chris Merritt this week, I suggested an operation like that involving former Gold Coast doctor Mohamed Haneef in 2006 might have triggered such a consequence if it had been deemed a ‘special intelligence operation’.

That particular arrest was the result of an Australian Federal Police investigation, but it is not beyond the realms of possibility to see ASIO involved in future such operations.

It was only thorough investigative reporting based upon leaks that led to a Gold Walkley Award for journalist Hedley Thomas at The Australian that exposed the flaws in the prosecution case against Haneef, and led to his later release and exoneration.

While Thomas and other national security writers would not want to compromise an anti-terror operation, you could certainly see them pursuing rigorous reporting of such a matter if a serious injustice appeared to be done or public safety was being placed in jeopardy.

And that is the problem – there is no ‘public interest’ defence available under the laws that have just passed both houses of the Australian Parliament.

Further, there is nothing that would prevent prosecution of a journalist who inadvertently disclosed information about such an intelligence operation in the course of their normal reporting.

I was discussing this today with another Walkley Award winning editor of a regional newspaper who was concerned that an operation conducted in a regional centre would be such big news that it would be difficult not to cover it.

That might well meet the definition of such a disclosure, and the reporters dealing with it would likely not be as well briefed in national security laws as their national and metropolitan counterparts.

Either way, and as I explained to Chris Merritt in that interview this week, the law now presents journalists with a potential new conflict between their code of ethics and the law over which they might face jail.

Journalists have traditionally been willing to go to prison to protect their confidential sources – and in fact three Australian journalists have done time for just that over the past three decades.

Now we have this new situation where some journalists might be willing to defy this new law – and face up to 10 years in jail – if they see an overriding public interest in revealing the nature of such an operation.

If they choose to do so, sadly there will be no defence available to them.

This is just one of a series of detrimental developments for media freedom in Australia in recent months which I have documented previously – all of which are likely to see Australia’s ranking decline in the RSF index which is being compiled over the next two months.

The Australian measures are already on the international radar, as a recent World Association of Newspapers (WAN-IFRA) blog by media academic Julie Posetti demonstrated.

My frank view is that Australia is an ‘emerging Secret State’ – a topic I will be addressing at an upcoming conference marking the 20th anniversary of the Pacific Journalism Review in Auckland in November.

Of course I do not suggest Australia is at the far end of the spectrum like North Korea, China or Vietnam. We do not have the licensing of journalists or the jailing or torture of those opposing the government’s line.

However, when compared with other Western democracies we do not have the safeguards of free expression protections in a Bill of Rights or in a major constitutional amendment as in the US.

Sadly, this means new gags like this measure can be rushed through Parliament by a government seeking a tougher anti-terror image and an Opposition fearful of being seen to go soft on national security.

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

Just as the Australian Government pushes for tougher obligations on telecommunications and Internet service providers to retain data, the latest figures show tens of thousands of government requests for citizens’ data in recent months.

Telstra has reported almost 85,000 government requests for customer data in the 2013-2014 financial year, while the transparency reports of international social media and search engine platforms Facebook, Twitter, Google and Yahoo show thousands more.

Importantly, the Telstra figures do not include requests from national security agencies because the Act prohibits the reporting of such requests.

According to the Telstra report, the overwhelming majority of the government requests (75,448) were for “customer information, carriage service records and pre-warrant checks”.

“Customer information refers to details that appear on a phone bill, such as the customer’s name, address, service number and connection dates. It can include other information we may hold such as a customer’s date of birth and previous address. Carriage service records relate to use of telecommunications services, including call records, SMS records, and internet records. These records include information such as details of a called party, and the date, time and duration of a call.

Internet session information includes the date, time and duration of internet sessions as well as email logs from Bigpond addresses. This does not include URLs. The Government has stated URLs are considered to be content and as such they will only request to access this information under a warrant or other court order.

A pre-warrant check confirms that telecommunication services of interest are still active with Telstra.”

There were 2,701 actual warrants for interception or access to stored communications.

Australian Government requests for data from the major international platforms also amount to thousands per year.

Google reports it produced data to about two thirds of the 1425 Australian Government requests in 2013.

Google’s Transparency Report

Facebook reported it had also complied with about two thirds of the 1149 data requests it received from Australian Government entities last year. Interestingly, it also restricted access to 48 pieces of content under Australian anti-discrimination laws.

Yahoo also rejected about one third of the 1312 Australian Government requests it received last year. Twitter claimed to have received only two Australian Government requests throughout the whole of 2013, indicating either a difference in reporting methodologies or far less government concern over the 140 character micro-blogging medium.

All this indicates there is a substantial amount of data being provided to government agencies both in Australia and internationally.

It raises key questions of media law in the areas of privacy, confidentiality and national security.

It also raises major concerns over the feasibility of whistleblowers and journalists being able to maintain the confidentiality of their communications. This happened recently in the UK, as the Press Gazette reported.

As I have blogged previously when I suggested the Watergate investigation could never happen in this era, perhaps it is time to acknowledge that it is almost impossible for a journalist to protect a confidential source under this regime of surveillance and data recording and retrieval.

Any journalist seeking to deal with a source on a strictly confidential basis would need a spy or hacker’s level of understanding of telecommunications systems if they wanted to win the confidence of an off-the-record source.

Perhaps only twentieth century techniques might work effectively – the rendezvous in the underground carpark with no digital devices on hand, and the delivery of materials via snail mail or ‘off the back of a truck’.

—-

Also, see this article on the international complexity of rights to your data:

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.